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There is no “Preliminary Hearing” in China criminal procedure. The Initial investigation is carried out by the prosecutor (Called The People’s Procuratorate in China), who will then decide if the case is deserving of criminal charges

After the prosecutor has concluded its investigation of a case, the facts should be clear and the evidence reliable and sufficient. It shall make a written recommendation for prosecution, which shall be transferred, together with the case file and evidence, to the People’s Procuratorate at the same level for examination and decision.

If it is discovered during investigation that a criminal suspect’s criminal responsibility should not have been investigated, the case shall be dismissed; if the criminal suspect is under arrest, he shall be released immediately and issued a release certificate, and the People’s Procuratorate which originally approved the arrest shall be notified.

The Prosecutor shall make a decision within one month on a case that a public security organ has transferred to it with a recommendation to initiate a prosecution; an extension of a half month may be allowed for major or complex cases.

When examining a case, the Prosecutor shall interrogate the criminal suspect and heed the opinions of the victim and of the persons entrusted by the criminal suspect and the victim (legal counsel).

In examining a case that requires additional investigation, the People’s Procuratorate may remand the case to a public security organ for supplementary investigation or conduct the investigation itself.

In cases where supplementary investigation is to be conducted, it shall be completed within one month. Supplementary investigation may be conducted twice at most. When supplementary investigation is completed and the case is transferred to the People’s Procuratorate, the time limit for examination and prosecution shall be recalculated by the People’s Procuratorate.

With respect to a case for which supplementary investigation has been conducted, if the People’s Procuratorate still believes that the evidence is insufficient and the case does not meet the conditions for initiation of a prosecution, the People’s Procuratorate may decide not to initiate a prosecution.

When a People’s Procuratorate considers that the facts of a criminal suspect’s crime have been ascertained, that the evidence is reliable and sufficient and that criminal responsibility should be investigated according to law, it shall make a decision to initiate a prosecution and shall, in accordance with the provisions for trial jurisdiction, initiate a public prosecution in a People’s Court.

A decision not to initiate a prosecution shall be announced publicly, and the decision shall, in written form, be delivered to the person who is not to be prosecuted. If the said person is in custody, he shall be released immediately.

If the People’s Procuratorate decides not to initiate a prosecution with respect to a case that involves a victim, it shall send the decision in writing to the victim.

If the victim refuses to accept the decision, he may, within seven days after receiving the written decision, present a petition to the People’s Procuratorate at the next higher level and request the latter to initiate a public prosecution.

If the People’s Procuratorate upholds the decision not to initiate a prosecution, the victim may bring a lawsuit to a People’s Court. The victim may also bring a lawsuit directly to a People’s Court without presenting a petition first.

Published by admin on July 18th, 2014 tagged Uncategorized

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